NOT RECOMMENDED FOR PUBLICATION

File Name: 14a0292n.06

No. 13-3952

UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT

FAUSTINO HERNANDEZ-LARA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS 

BEFORE: MOORE, ROGERS, Circuit Judges; NIXON, District Judge.*

ROGERS, Circuit Judge. Faustino Hernandez-Lara petitions to review a decision from 

the Board of Immigration Appeals denying his application for cancellation of removal. The 

Board agreed with the immigration judge that Hernandez’s removal to Mexico would not result 

in the requisite level of “exceptional and extremely unusual” hardship to his United Statescitizen child to warrant cancellation of removal. On appeal, Hernandez argues that the Board’s 

discretionary determination denying him relief violates his daughter’s constitutional right to 

equal protection of the laws. In addition, Hernandez challenges the immigration judge’s finding 

that the evidence presented was insufficient to demonstrate that Hernandez was continually 

present in the United States for ten years, making him ineligible for cancellation of removal. In 

its decision denying Hernandez relief, the Board did not rely on the immigration judge’s 

 

* The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by 

designation.
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conclusions regarding the “continuous presence” requirement, focusing instead on his failure to 

establish exceptional hardship to his daughter. Because this court lacks jurisdiction to review the 

Board’s discretionary determination under 8 U.S.C. § 1229b, and because Hernandez has failed 

to articulate a cognizable constitutional claim on behalf of his daughter, we deny the petition for 

review.

Hernandez is a native and citizen of Mexico. At some point, he entered the United States 

illegally with the mother of his United States-citizen child, AHF, who is now six years old. In 

2010, the Department of Homeland Security initiated removal proceedings against Hernandez 

under § 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i), as 

an alien present in the United States without being admitted or paroled. AR 291. Hernandez 

conceded removability, and filed an application for cancellation of removal with the immigration 

court, pursuant to § 1229b(b)(1) & (d)(1). To be eligible for cancellation of removal, Hernandez 

was required to show that (1) he had been physically present in the United States for at least ten 

years immediately preceding his application; (2) that he had been a person of good moral 

character during that period; (3) that he had not been convicted of certain enumerated criminal 

offenses; and (4) that his removal would result in exceptional and extremely unusual hardship to 

his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for 

permanent residence. 8 U.S.C. § 1229b(b)(1)(A)-(D).

The immigration judge denied Hernandez’s application for cancellation of removal, 

concluding that Hernandez had not established that his removal would cause his United Statescitizen daughter the “exceptional and extremely unusual hardship” required to grant him relief. 

8 U.S.C. § 1229b(b)(1)(D). In making this determination, the immigration judge weighed two 

scenarios he found equally plausible: one in which AHF would return to Mexico with her father 
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(and possibly her mother), and one in which AHF would remain in the United States (likely with 

her mother). 

If AHF returned to Mexico with her father, she would be able to reside, at least for a 

time, with her paternal grandmother, and while there would be some financial hardship and a 

reduction in the standard of living, the immigration judge found that “[t]here is nothing to 

suggest...that [AHF’s parents], who are both employable, would be unable to meet the 

necessities of their daughter.” The court concluded that “it is clear [AHF] would not be deprived 

of education in Mexico,” and that the possibility of AHF’s exposure to “generalized violence in 

Mexico” is no greater than that of any other citizen. Finally, while AHF had benefitted from 

treatment for language problems until she was three years old, Hernandez admitted he believes 

“that she now falls within normal limits for speech and development,” and the court determined 

“that any concerns about special education needs in the future are...speculative.” 

If AHF were to remain in the United States, presumably with her employed mother, the 

immigration judge determined that AHF “would be able to continue to receive Government-paid 

health insurance as well as the prospect of additional support in the form of food stamps and 

housing, if needed and the family qualified.” Therefore, any economic hardship attributable to 

her father’s departure and income reduction “would not be extreme.” While Hernandez’s return 

to Mexico “would involve some level of emotional hardship in that she would not have contact 

with respondent and would not benefit from his parental guidance,” the immigration judge found 

that “considering all factors . . . these fall within the range of normal hardship that would 

typically be experienced in a situation where an alien departs the United States and has close 

family members in this country.” The hardship to AHF, the immigration judge concluded, 

would therefore not be extreme or unusual. The immigration judge also found that Hernandez’s 
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testimony and evidence about the precise date on which he entered the United States was 

“vague” and “raise[d] doubt as to the accuracy and reliability of the respondent’s claimed entry 

date.” 

Hernandez appealed the decision of the immigration judge. The Board affirmed, 

agreeing with the immigration judge’s analysis and conclusion that Hernandez had not met his 

burden of proving that his removal would result in exceptional and extremely unusual hardship 

to his daughter. The Board did not reach the alternative ground of the immigration judge’s 

decision that there was not sufficient evidence to prove that Hernandez had been continuously 

present in the United States for ten years. On appeal to this court, Hernandez argues that the 

immigration judge’s (and subsequently the Board’s) decision applying § 1229b(b)(1) violates 

AHF’s right to equal protection.

AHF’s constitutional rights are not implicated by the Board’s discretionary determination 

that Hernandez failed to establish the requisite statutory “exceptional and extremely unusual 

hardship to a qualifying relative.” Although the court lacks jurisdiction to review the 

determination of whether a petitioner has met this burden as a matter of fact, see Ettienne v. 

Holder, 659 F.3d 513, 517 (6th Cir. 2011), we do have jurisdiction to review “constitutional 

claims and questions of law.” 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). Hernandez’s claim that the 

government’s decision to remove him to Mexico will violate AHF’s equal protection rights is 

within the purview of this court’s jurisdiction. Hernandez argues that the implementation of the 

“exceptional and extremely unusual hardship” requirement violates AHF’s constitutional rights 

because it adversely affects only those members of the class of United States-citizen children like 

AHF whose parents are subject to removal from this country. The petitioner’s argument in this 

regard is not entirely clear as to how the Board’s application of the Immigration and Nationality 
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Act violates the Equal Protection Clause. In any event, the law on this point is settled: a United 

States-citizen child’s constitutional rights are not implicated by the government’s otherwise valid 

decision to deport that child’s parents. Newton v. I.N.S., 736 F.2d 336, 343 (6th Cir. 1984); see 

also Payne-Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007), Oforji v. Ashcroft, 354 F.3d 

609, 618 (7th Cir. 2003), Urbano de Malaluan v. I.N.S., 577 F.2d 589, 594 (9th Cir. 1978),

Perdido v. I.N.S., 420 F.2d 1179, 1181 (5th Cir. 1969). As we noted in Newton, “Were we to 

hold otherwise, we would create a substantial loophole in the immigration laws, allowing all 

deportable aliens to remain in this country if they bear children here.” Newton, 736 F.2d at 343

(quoting Ayala-Flores v. I.N.S., 662 F.2d 444, 446 (6th Cir. 1981)). 

Hernandez has stated no valid constitutional claim, and this court otherwise lacks 

jurisdiction to review the agency’s determination that Hernandez’s removal would not result in 

the requisite level of hardship to AHF under § 1229b(b)(1)(D). There is no need to address 

Hernandez’s alternative argument that the immigration judge erred with respect to whether 

Hernandez had been continuously present in the United States for the past ten years. In any 

event, the Board did not rely on that ground.

Accordingly, Hernandez’s petition for review is DENIED.